Setback Requirements

Technical Guidance Memo MN96-1MLR

This guidance is intended to clarify the requirements contained in 6NYCRR 422.2(c)(3)(iii) (link leaves DEC's website) regarding mining setback requirements. Specific references to these "setback requirements" are contained within the written portion of the mining plan and are referenced as standards that must govern each submission.

The setback requirements contained within Environmental Conservation Law (ECL) Article 23, Title 27 (Mined Land Reclamation Law (MLRL)) (link leaves DEC's website) are for the purpose of protecting the integrity of the adjacent properties, easements and rights-of-way owned or controlled by others. Mining operations must maintain a minimum 25-foot buffer (undisturbed) plus a slope that is greater than the natural angle of repose of the material being mined as contained in 6NYCRR 422.3(d)(2)(v). The provisions for modifications or variances to the setback requirement are discussed in section II of this memorandum.

It is the responsibility of the Mined Land Reclamation Specialist when conducting the mined land use plan review to ensure that the following information is presented in both written and graphic form.

(a) setbacks are established according to the standards of the Mined Land Reclamation Law.

(b) mining will occur such that slopes maintained during mining will be stable and not present an erosion or stability problem that could threaten the undisturbed buffer.

(c) final reclamation slopes mandated by the Mined Land Reclamation Law are met. This can be done by ensuring that mining in the affected area is conducted such that final reclamation slopes can be achieved according to the approved mined land use plan.

For purposes of this document, the following terms will be used in describing the "setbacks" as defined in 6NYCRR 422.2(c)(3)(iii):

Undisturbed Buffer - means all land within 25 feet (measured in a horizontal plane) from the nearest adjacent property line which may not be disturbed in preparation for mining, i.e., no mining activity can take place including stripping, grubbing, stockpiling, location of haul roads, etc.

Setback to Mine Floor - means the distance (measured in a horizontal plane) between the nearest adjacent property line and the perimeter of any temporary or permanent mine floor.

For purposes of this guidance, the minimum setback for excavations will be 25 feet measured in a horizontal plane when the adjacent property is at or below the proposed final elevation of the affected land.

When the adjacent property is at a higher elevation than the affected land, the following provisions apply:

Minimum setback requirements will be 25 feet (undisturbed buffer) plus an additional one and one-half times the height of the mine face. For example, if a temporary or permanent mine face is 60 feet high, the setback between the nearest adjacent property line and the perimeter of the temporary or permanent mine floor must be 25 feet (undisturbed buffer) plus one and one-half times 60 feet or 115 feet, measured in a horizontal plane from the bottom of the temporary or permanent mine floor to the adjacent property line (graphic example #1).

The first 25 feet is the undisturbed buffer which is not considered affected land and, therefore, need not be bonded or reclaimed. The remaining setback, 90 feet in the above example, is considered affected land and, therefore, needs to be bonded and reclaimed. From the edge of the 25-foot setback, a line should be drawn to the temporary or permanent floor of the mine as depicted in the mined land use plan, maintaining a horizontal distance of at least 25 feet plus one and one-half times the face height at any point on the line. That line will set the minimum setback for any bench or floor (see graphic example #1), and no mining can occur on the adjacent property side of the line.

Unconsolidated Materials - Notes

1. Example #1 provides the minimum setback as provided in the Mined Land Reclamation rules and regulations.

2. The 25-foot buffer must remain undisturbed by all mining activities unless otherwise approved in writing by the Department.

3. The dashed line represents a setback from the undisturbed buffer of 1 times the face height at any point. In order to be in compliance with the MLRL rules, the perimeter of any temporary or permanent mine floor must not cross this line.

Minimum setback requirements for consolidated material will be 25 feet (undisturbed buffer) plus one and one quarter times the height of the mine face. For example, if a temporary or permanent mine face is 100 feet, the setback between the nearest adjacent property line and the perimeter of the temporary or permanent mine floor must be 25 feet (undisturbed buffer) plus one and one-quarter times the height or 150 feet. The first 25 feet is the undisturbed buffer which is not considered affected land and, therefore, need not be bonded or reclaimed. The remaining setback, 125 feet in the following example, is considered affected land and, therefore, needs to be bonded and reclaimed. From the edge of the 25-foot setback, a line should be drawn to the temporary or permanent floor of the mine, maintaining a horizontal distance of at least 25 feet plus 1 and 1/4 times the face height at any point on the line. The line will set the minimum setback for any benches or floor (see graphic example #2), and no mining can occur on the adjacent property side of that line.

Consolidated Materials - Notes

1. Example #2 provides the minimum setback as provided in the Mined Land Reclamation rules and regulations.

2. The 25-foot buffer must remain undisturbed by all mining activities unless otherwise approved in writing by the Department.

3. The dashed line represents a setback from the undisturbed buffer of 1 times the face height at any point. To be in compliance with the Mined Land Reclamation rules, the perimeter of any temporary or permanent floor must not cross the line. The example depicts two 50-foot lifts that are in compliance with the setback requirements. Various combinations of lifts and benches are possible, provided the outside perimeter of any bench or lift does not cross the dashed line. All benches or cuts are considered mine floors.

Depending on the material that may be backfilled according to the approved reclamation plan, the final reclamation slope requirements as set forth in 6NYCRR 422.3(d)(2)(v)(b) (link leaves DEC's website) is determined according to the following table:

The regulations provide that the applicant may, with the approval of the Department, modify the distance (setback) requirements contained in 6NYCRR 422.2(c)(3)(iii) and the slope provisions contained in 6NYCRR 422.3(d)(2)(v)(b). In addition, 6NYCRR 422.1(f) provides that the Department may modify any of the substantive requirements upon a showing by the applicant that the proposed modification will achieve the same degree of environmental protection as would be achieved by compliance with the provision for which modification is requested. In reviewing the impact of mining, any variance request must address the environmental impacts of such a change. The variance request must be technically and environmentally supportable and must address any potential impacts of mining within the setback area, e.g., noise, dust, debris from blasting, view-shed, and creation of steep or unstable slopes near the property boundary. The application for a permit modification should be submitted to the Regional Permit Administrator. Review of the application or request for a modification will be conducted by the Mined Land Reclamation Specialist. Review of requests for modifications to the setback from property lines or easements should seek out and consider the views and concerns of all adjacent property owners. The Uniform Procedures Act (621.3(4) requires that variances be submitted as part of the permit application for new mines and as permit modifications to existing mines. Variance requests should be submitted as part of a new permit application or as a modification to an existing permit and need to be evaluated under the State Environmental Quality Review Act. Modifications to the setback requirements will be reviewed and approved by the Department on a case-by-case basis.

ECL 23-2711(3)(a)(I) provides that in regard to new applications, local governments may make recommendations to DEC regarding setback distances during the permit review process. Each recommendation must be supported by documentation justifying the recommended setback and must be provided to the Department within thirty days of the local government's receipt of the Department's Notice of Complete Application. If the Department finds that the recommendations made by the local government are reasonable and necessary, the Department must incorporate them into a permit, if one is issued. If the Department does not agree that the recommendations are justifiable, then the Department must provide a written statement to the local government and the applicant, as to the reason or reasons why the recommendation was not incorporated into the permit.

Please be advised that the setbacks discussed in this TGM refer to the provisions of the Mined Land Reclamation Law and are the minimum setbacks necessary to comply with the law. There may be instances which justify increasing the setbacks to reduce or mitigate environmental impacts.

Each project proposal will be examined individually, on a case-by-case basis, under the Mined Land Reclamation Law (MLRL), State Environmental Quality Review Act (SEQR), and any other applicable statutes to determine the acceptability of the Mined Land Use Plan.

Determinations to conduct a public hearing will be made in accordance with the provisions of the Uniform Procedures Act.